Citation Nr: 1118337
Decision Date: 05/12/11 Archive Date: 05/17/11
DOCKET NO. 10-15 889 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUE
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund (FVEC).
ATTORNEY FOR THE BOARD
Thomas D. Jones, Counsel
INTRODUCTION
The Veteran served on active duty with the recognized guerillas from July 1945 to June 1946.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA).
The issue of whether new and material evidence has been submitted to reopen a declaration of fraud resulting in forfeiture of VA benefits has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Pursuant to Trilles v. West, 13 Vet. App. 314 (2000) (en banc), a declaration of forfeiture may be reopened upon the presentment of new and material evidence. Nevertheless, the Board does not have jurisdiction over this issue at this time, and it is referred to the AOJ for appropriate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
In a February 1991 administrative decision, VA determined that the Veteran had forfeited all rights, claims, and benefits under VA law due to fraud. Appeal of this decision was not perfected, and it became final.
CONCLUSION OF LAW
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is precluded by law. 38 U.S.C.A. §§ 501(a), 6103 (West 2002 & West Supp. 2010); American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009); 38 C.F.R. §§ 3.203, 3.901 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under the recently enacted American Recovery and Reinvestment Act, a new one-time monetary benefit is provided for certain Philippine veterans to be paid from the Filipino Veterans Equity Compensation Fund (FVEC). American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009).
For eligible persons who accept a payment from the FVEC, such payment "shall constitute a complete release of any claim against the United States by reason of [such] service . . . ." However, nothing in the act "prohibit[s] a person from receiving any benefit (including health care, survivor, or burial benefits) which the person would have been eligible to receive based on laws in effect as of the day before the date of the enactment of this Act."
The provisions of § 1002 address Payments to Eligible Persons Who Served in the United States Armed Forces in the Far East during World War II. Subsection (d) provides that an eligible person is any person who--(1) served--(A) before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including among such military forces organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; or (B) in the Philippine Scouts under § 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538); and (2) was discharged or released from service described in paragraph (1) under conditions other than dishonorable.
In the present case, the Veteran has verified service in the recognized guerillas between July 1945 and June 1946, and he is thus within the class of eligible recipients as defined by the Act. His claim was denied by the RO, however, due to a February 1991 administrative decision which found he participated in fraud in attempting to obtain VA benefits for himself or others, and all rights, claims, and benefits administered under VA law were forfeited pursuant to 38 U.S.C.A. § 3503 (now 38 U.S.C.A. § 6103). He filed a timely February 1991 notice of disagreement regarding this determination, and was sent a statement of the case in January 1992. Thereafter, he failed to file a timely VA Form 9 substantive appeal, and this decision became final. See 38 U.S.C.A. § 7105 (West 2002).
Whoever knowingly makes a false or fraudulent affidavit, or submits other false or fraudulent evidence concerning any claim for benefits under the laws administered by VA (except for insurance benefits) shall forfeit all rights, claims, and benefits under all laws administered by VA (except insurance benefits). 38 U.S.C.A. § 6103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.901(a) (2010). As entitlement to a one-time payment from the FVEC is not within the narrow range of exceptions of benefits subject to forfeiture under 38 U.S.C.A. § 6103, entitlement to this benefit is statutorily-barred in the present case.
In the absence of evidence that the Veteran's forfeiture of VA benefits based on a finding of fraud has been revoked, the Board finds that the claim to entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. Cacalda v. Brown, 9 Vet. App. 261 (1996) (holding that where the law, and not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).
Finally, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist claimants in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).
In some cases, however, the VCAA need not be considered because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 231-232 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002); see also 38 C.F.R. § 3.159(b)(3)(ii) (VCAA notice not required when, as a matter of law, entitlement to the benefit claimed cannot be established); 38 C.F.R. § 3.159(d)(3) (VA will refrain from or discontinue assistance with regard to a claim requesting a benefit to which the claimant is not entitled as a matter of law).
This is such a case. As discussed, resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations pertaining to basic eligibility for VA benefits and one-time payment under the FVEC. The VCAA is therefore inapplicable and need not be considered in this case. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also VAOPGCPREC 5-2004 (June 23, 2004).
ORDER
Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.
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L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs